Plaintiff (Law Firm Lotex, Attorneys Min Byung-deok et al., Counsel for the plaintiff-appellant)

The head of Gwanak-gu in Seoul Special Metropolitan City (Attorney Kim Young-ro)

Promotion Committee for the Establishment of Housing Redevelopment and Improvement Project Cooperatives

October 12, 2011

Seoul Administrative Court Decision 2009Guhap47392 Decided November 5, 2010

1. The defendant's appeal is all dismissed.

2. The Intervenor joining the Defendant shall bear the costs incurred by the participation in the appeal, and the remainder shall be borne by the Defendant.

1. Purport of claim

On June 25, 2004, the Defendant confirmed that the approval for establishment of the New Forest Zone IV Housing Redevelopment and Improvement Project Association was null and void, which was granted to the Intervenor joining the Defendant, and the rejection of the application for the provision of written consent granted to the Plaintiff on October 15, 2009 to the Plaintiff on October 15, 2009.

2. Purport of appeal

The part of the judgment of the court of first instance against the defendant shall be revoked, and all of the plaintiff's claims shall be dismissed.

1. Request for nullification of the disposition of approval for establishment by the intervenor;

(a) Details of the disposition;

서울특별시장은 2004. 6. 25. 구 도시 및 주거환경정비법(2005. 3. 18. 법률 제7335호로 개정되기 전의 것, 이하 ‘구 도시정비법’이라 한다) 제3조 에 의하여 서울 관악구 신림6동 808 일대 120,192.15㎡(12.1ha, 별지 도면상의 ▩로 표시된 ‘기존 신림4구역’ 부분)를 신림제4정비예정구역(이하 ‘이 사건 정비예정구역’이라 한다)으로 지정하는 내용의 서울특별시 도시·주거환경정비기본계획(이하 ‘이 사건 정비기본계획’이라 한다)을 고시하였다.

On June 25, 2004, 1,311 owners of the land, etc. in the instant zone scheduled to be rearranged (i.e., 685 owners of the building, etc. subject to permission + 626 owners of the building without permission) agreed on the composition of the committee for promotion for the establishment of the Housing Redevelopment Improvement Project for the instant zone to be rearranged (52 owners of the building, etc. without permission + 283 owners of the building, etc.) (i.e., 685 owners of the building, etc. subject to permission) (hereinafter “instant approval disposition”).

[Reasons for Recognition] No dispute, Gap evidence 12, 13, Eul evidence 24, 36, Eul evidence 39-1 and 2, and the purport of the whole pleadings

B. Whether the approval disposition of this case is void as a matter of course

1) The plaintiff's assertion

Although the Supreme Court’s decision was clearly revealed that the owner of an unauthorized building does not correspond to the owner of the land, etc. under the former Urban Improvement Act before the instant approval disposition, the Intervenor’s promotion committee cannot be deemed a legally organized committee since the owner of an unauthorized building participated in the organization of the Intervenor’s promotion committee as a member or auditor of the Intervenor’s promotion committee. Furthermore, the Intervenor’s promotion committee cannot be deemed a legally organized committee, among the total 706 written consent form attached to the written consent form, only 424 persons are the owner of the building, etc., and 24 persons among the 424 persons are the owners of the building, etc. before the former Urban Improvement Act enters into force, and the 275 persons were prepared before the public announcement of the instant master plan was made. Therefore, the pertinent approval disposition was merely invalid because only 149 persons, which were much less than 1/2 of the total owners of the land, etc. at the time of the instant approval disposition, were consented to the organization of the Intervenor.

2) Determination

In a case where there is room for dispute over the interpretation of a certain legal relationship or fact-finding by an administrative agency as it is clearly revealed, even if an administrative agency erroneously interpreted it and issued an administrative disposition, it cannot be deemed clear that the defect is merely a misunderstanding of the requirements for such disposition. Furthermore, the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions at the time of the instant approval disposition or relevant statutes requires the consent of at least 1/2 of the owners of a plot of land, etc. regarding the composition of the promotion committee. There is no special restriction on the form and timing of consent or consent of the owners of a plot of land, etc., the chairperson of the promotion committee and the selection method of members, etc. (see Supreme Court Decision 2011Du2842, Jul. 28, 2011). In addition, even if each of the provisions of Articles 3, 4, and 13(2) of the former Act, Article 28(3) of the former Enforcement Decree of the Act (amended by Presidential Decree No. 21679, Aug. 1111, 2009). 209).

In light of the above legal principles, at the time of the instant approval disposition, the legal principles on the timing of consent to the composition of the association establishment promotion committee or the legal principles on the invalidation of the relationship with the project area were not clearly stated, and the defendant was unable to find out that some of the instant written consent cannot be seen as pertaining to the composition of the intervenor promotion committee without conducting an investigation of separate factual relations. Thus, even if there were unlawful grounds as alleged by the plaintiff, even if there were such unlawful grounds as alleged by the plaintiff, it is not clear that such unlawful grounds are to be deemed to be null and void as a matter of course. In addition, since the consent ratio of the promotion committee is clearly exceeded 1/2 of the owners of land, etc. on the basis of only legitimate land, other than the owner of an unauthorized building, the consent ratio on the composition of the

Therefore, this part of the plaintiff's assertion is without merit.

B. Whether the invalidation of the approval disposition of this case is invalidated

1) The plaintiff's assertion

The Intervenor’s Promotion Committee received the instant approval disposition under the condition that only the instant master plan for improvement was publicly announced, and as the project plan for the instant zone to be rearranged was substantially modified pursuant to the special law for the promotion of urban renewal and the new improvement zone was designated, the requirements for the formation of an association establishment promotion committee was significantly modified. Therefore, the Intervenor’s Promotion Committee cannot have a legal status as the promotion committee for the newly designated project area, and eventually lost its legal status as the promotion committee. Accordingly, the instant approval disposition should be deemed null and void.

(ii) the facts of recognition

On December 16, 2005, the Mayor of Seoul Special Metropolitan City designated and publicly announced the area of 1514,100 square meters in the Seoul Special Metropolitan City, Nowon-gu, Seoul Special Metropolitan City as a new forest New Town, including the area to be rearranged in accordance with the Seoul Special Metropolitan City Ordinance on the Support for Balanced Regional Development.

On October 19, 2006, the Mayor of Seoul Special Metropolitan City re-designated and publicly announced a new forest New Town as an urban renewal acceleration district pursuant to a special Act for the promotion of urban renewal, but on April 10, 2008, the new forest renewal acceleration plan was determined and publicly announced on April 10, 200 to reduce the area of the new forest renewal acceleration district from 537,100 square meters to 527,790 square meters, and the new forest renewal acceleration plan was determined and publicly announced on the new forest renewal acceleration district, as shown in the attached Form 808, 233,729 square meters (23.4 square meters) of the new forest renewal acceleration district in Seoul Special Metropolitan City, Nowon-gu as the new forest renewal acceleration district (hereinafter “instant renewal acceleration district”). At around that time, the owners of land, etc. in the renewal acceleration district was 1,411 (the building owner is not included in the building owner).

[Reasons for Recognition] No dispute, Gap evidence Nos. 15, 33, 34, Eul evidence Nos. 38, 39-1, 2, and the purport of the whole pleadings

3) Determination

In comparison with the instant renewal promotion zone, the project area was increased by approximately 89% from 12.1st to 23.4th, and the number of legitimate owners of land, etc. was increased by about 685 to about 1,411, and eventually, the ratio of consent to the organization of the Intervenor's promotion committee among legitimate owners of land, etc. of the instant renewal promotion zone was over 28.49%, and in addition to the instant renewal promotion zone and each project area location of the renewal promotion zone, the identity between the instant renewal promotion zone and the instant renewal promotion zone cannot be deemed to be recognized. Therefore, the Intervenor's promotion committee cannot be deemed to be the promotion committee with the instant renewal promotion zone designated and notified. Rather, as the renewal promotion zone was replaced with the instant renewal promotion zone without identity, it lost the legal status of the association establishment promotion committee, and at the same time, the Intervenor's approval of the composition of the promotion committee was also invalidated, and the instant disposition was also invalidated in this part of this case.

2. Demanding revocation of the application for written consent to organize the association establishment promotion committee;

(a) Details of the disposition;

On October 8, 2009, some owners of the land, etc. of the instant renewal acceleration zone including the Plaintiff (hereinafter “Plaintiffs, etc.”) filed an application to provide the Defendant with a written consent for organizing an association promotion committee with which a number is assigned to the Defendant pursuant to Article 6(2) of the former Enforcement Rule of the Urban Improvement Act (amended by Ordinance of the Ministry of Land, Transport and Maritime Affairs No. 157, Aug. 13, 2009) to implement housing redevelopment improvement projects concerning the instant renewal acceleration zone.

However, on October 15, 2009, the Defendant rejected the Plaintiff’s application for the provision of written consent to the composition of the Plaintiff, etc. on the ground that “only one promotion committee is allowed in one business area, but the Intervenor exists in the instant renewal promotion zone as an already approved promotion committee and is proceeding to change it to the promotion committee in the instant renewal promotion zone.” (hereinafter “instant rejection disposition”).

[Reasons for Recognition] No. 2-1, 2, 3, 26, 37 evidence, Eul's each entry in the evidence No. 40, and the purport of the whole pleadings

B. The allegations by the parties and the determination thereof

As seen earlier, the instant disposition that approved the formation of the Intervenor’s promotion committee was invalidated in the sense that it was invalidated by the designation and public notice of the renewal promotion zone of this case. Therefore, the instant disposition based on the premise that there was a promotion committee already approved in the instant renewal promotion zone is unlawful without further review. Therefore, the Plaintiff’s assertion on this part is with merit.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted on the grounds of all the claims. The judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed as it is without merit.

[Attachment]

Judges Cho Jong-chul (Presiding Judge)